IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1915 of 2013 FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN and HONOURABLE MS. JUSTICE NISHA M. THAKORE ==========================================================

Approved for Reporting Yes No ✔

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UNITED INDIA INSURANCE COMPANY LIMITED Versus PAYALBEN SURESHBHAI HARIJAN & ORS.

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Appearance:

MR VC THOMAS(5476) for the Appellant(s) No. 1 MR MTM HAKIM(1190) for the Defendant(s) No. 1,6 RULE SERVED for the Defendant(s) No. 2,3,4,5,7,8 ==========================================================

CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN and HONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 03/12/2025 ORAL JUDGMENT (PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)

Captioned appeal is directed against the judgment dated

13.03.2013 (hereinafter referred to as “the impugned judgment”) passed by the Motor Accident Claims Tribunal (Auxi.) & 3^rd Additional District Judge, Panchmahals at Godhra (hereinafter referred to as “the Tribunal”) in Motor Accident Claim Petition No.1062 of 2007, whereby the claim petition of the claimants, is partly allowed to the extent of Rs.8,53,500/- together with proportionate costs and interest at the rate of 9% per annum from the date of filing of the claim petition. Being aggrieved, the United India Insurance Company Limited, has preferred the captioned appeal.

2. Mr. V.C. Thomas, learned advocate for the appellant, has submitted that the Tribunal has committed an error by overlooking the facts and evidence produced on record. It is further submitted that the deceased and other passengers were travelling in the Jeep bearing registration no.GJ-17-C-3239 (hereinafter referred to as “the vehicle”) on hire and reward basis. Pertinently, the policy was packaged policy of a private car, and hence, the Insurance Company is not liable to pay compensation, considering the breach of the conditions of the policy.

2.1 It is further submitted that FIR being I-C.R. No.113 of 2007 was lodged with Devgadh Baria Police Station for the offences under Sections 279, 304A, 338 of the Indian Penal Code, 1860, and Sections 177 and 184 of the Motor Vehicles Act, 1988, (hereinafter referred to as “the Act of 1988”). In the FIR, the complainant has clearly stated that the vehicle was engaged on hire and reward basis and the passengers, were travelling to attend the wedding ceremony; for playing the band. Clearly, there was a clear breach of the conditions contained in the policy. The FIR also suggests that all the passengers including the deceased, had hired the vehicle. While inviting the attention of this Court to the oral evidence at Exh.24 of the claimant no.1, it is submitted that in her cross-examination, it is clearly stated that the deceased was travelling with the band. It is submitted that when the passengers were travelling on hire and reward basis, the learned Judge, ought not to have held responsible the Insurance Company jointly and severally to pay the compensation. Alternatively, it is submitted that if the appeal is allowed, applying the principle of “pay and recover”, the Insurance Company, may be directed to recover the amount of compensation from the driver and the owner of the vehicle.

2.2 Reliance is placed on the judgment of the Apex Court in the case of Manuara Khatun & Ors vs Rajesh Kr. Singh & Ors reported in 2017 (4) SCC 796. Though the Insurance Company was exonerated, the Apex Court, applying the principle of “pay and recover”, directed the Insurance Company to pay the awarded sum and liberty was reserved to recover the paid awarded sum from the owner of the offending vehicle in the execution proceedings. It is, therefore, submitted that applying the above referred principle, the Insurance Company, may be further allowed to recover the amount from the driver and the owner of the vehicle, in accordance with law.

2.3 Besid